Under Hindu law, marriage marks the beginning of a relationship that is expected to last a lifetime. But this relationship does not always work out as expected in the beginning due to the personal reasons of both the partner. In the past years, divorce cases have increased manifolds in India. Divorce has helped such individuals who are suffering mentally from their relations by providing them a remedy to end their sufferings and live their life happily.
One of the most important rights after the divorce is the right to claim alimony. The law on Alimony varies according to the personal law of the individuals. As India is a diverse nation and our society consists of five major communities such as Hindu, Muslim, Christian, Parsis and Jews. Each community has its own personal laws derived from religious scriptures, customs and traditions.
What is Alimony?
The term ‘Alimony’ is originated from the Latin word ‘Alimonia’ which means nourishment and a means of sustenance. It is also commonly known as maintenance. It is a legal obligation of a partner towards their spouse to provide financial support to her/him after the dissolution of their marriage. If one spouse is unable to sustain herself/himself financially and cannot afford even the basic amenities like food, clothing and shelter, the other spouse is under obligation to pay them a sum of money so that the other partner will able to maintain the same standard of living as of before the separation.
This law in India is not a gender specific law, therefore among husband or wife anyone can ask for alimony to their respective partners.
Types of Alimony-
- Temporary or Separation Alimony- When a couple is separated from the house of their marriage and he/she is not able to maintain himself/herself financially. The court can give order for the separation alimony till the divorce gets final decision after that the separation alimony can be changed to another kind of alimony. And if the couple reconciles, the alimony can be stopped by the court after giving in writing. This is given so that the dependent spouse may maintain his/her lifestyle between the time period of separation and divorces.
- Permanent Alimony- Permanent alimony is when the payments are for indefinite time. It continues until the death of the payer, the death of the recipient or the remarriage of the recipient or till the recipient cohabitates with someone else. In exceptional cases, it can continue after the remarriage of the recipient. It can be reviewed and amended on the change of the circumstances. This type of alimony awarded when the recipient prior to marriage had no employment experience or history and after marriage undertaken the role of a home maker. Other circumstances where the recipient has some level of disability or permanent incapacity.
- Rehabilitative Alimony-When a spouse needs time to develop employment skills, professional experience or education or to put themselves into a position to become self-sufficient. There is no set time period for the applicability of this alimony; it varies according to the individual’s situation. However, the court may order to the other spouse for the rehabilitative alimony for a short period or fixed period according to the need of the situation. It can also be given to stay-at-home parent of small children so that he or she may stay home until the children reach school age. The parties can agree to a timeline.The courts can review at intervals to check on the progress of the receiving spouse and order for appropriate changes.
- Reimbursement Alimony-Where one spouse has spent money for the other spouse’s college or education fees or for an employment program resulting in the increment in the spouse’s earnings. The court may award reimbursement alimony either to the extent of half the amount spent or complete amount, as it may deem fit.
- Lump sum Alimony- It is a one-time fixed cash payout either in single transaction or in installments to the recipient instead of property or other valuables that the spouses have accumulated since their marriage. There is no further question of recurring payments after the completion of this alimony.It cannot be modified after the completion of payment of the sum of alimony.
Can taxation law be implied on the amount of alimony?
There is no specific provision under the Income Tax Act, 1961 which governs the provisions relating to the taxation on the alimony amount. However, there are different circumstances on which it depends-
- In case of a lump sum payment of alimony-The alimony is treated as a capital receipt and thus it is not treated as income under the Income Tax Act. Hence it is not taxable and provisions of Income Tax Act do not apply.
- In case of recurring payments of alimony-The alimony is treated as a revenue receipt and thus it is treated as income under the Income Tax Act. Hence it taxable.
NOTE: The person making the payment cannot claim any sort of deduction against the same under the Income Tax Act.
What are the factors taken into account while deciding quantum of alimony?
The court while considering the quantum of alimony should take into account the amount of alimony as well as duration of the alimony:-
- Period of marriage-Marriage which lasts for more than 10 years are entitled to permanent alimony.
- Age of Spouse- A young spouse may finance himself/ herself according to the career excellence and potential now days. However, an old spouse may find it difficult to enter into the working world after the long break of marriage.
- Child Custody- The spouse who keeps the child with him/ her will be entitled to receive a greater amount of alimony due to the additional responsibilities and expenditure incurred on Child’s upbringing and education.
- Position and Income of both the spouse- The status and income of both the spouse should be consider so that no one claim additional to what he/she is entitled.
- Mental and Physical health of both the spouse- If the spouse claiming alimony is not in good health or suffering from any ailment and due to which he/she is not able to work for his living. The other spouse has to ensure the proper medication and well-being for the spouse.
- Equal conditions for the living of both of the spouses- The higher earning spouse is obligated to pay a good amount to the other earning spouse so that the economic status of both the spouses do not differ on large scale.
- Liabilities of the paying spouse- If the spouse is taking care of wholly dependent parents or any other liability in his family, then such conditions should be considered before granting alimony.
- Reason for separation- The court has to consider the reason of the separation of the spouses whether they are justified or not.
In the landmark judgment of the Hon’ble Supreme Court of India- Kalyan Dey Chowdhury v/s Rita Dey Chowdhury Nee Nandy (Civil Appeal No. 5369 of 2017) – The Court held that 25% of the husband’s net salary was taken as a benchmark to constitute a just and proper amount of alimony. The court further observed that the amount must be just enough to live with dignity after the marital separation.
Permanent alimony comes as a relief for the spouse who is economically weaker than the other spouse.So that after the dissolution of marriage the financially unstable spouse does not have to bear the pain of something which is unbearable to the parties. This right has enabled many individuals to maintain themselves and their family and protect them from committing any harm to them.
Associate at Aggarwals & Associates, S.A.S Nagar, Mohali